5. Spiritual Command and Temporal Rule

The question of the separation between “religion” and “politics” is a recurring topic in literature. Rosenthal, for instance, uses this terminology in his interesting reflection on secularism in modern Islam: Erwin I. J. Rosenthal, “Some reflections on the separation of religion and politics in modern Islam”, in Islamic Studies, vol. III, n. 3, September 1964, pp. 249–284.

This approach, still influencing the present debate at least in its terminology, first rose in the Enlightenment era, characterized by a fatalistic optimism in a homogeneous and universal notion of progress. Mah, for instance, underlines two essential conceptions of this perspective: progressivism and universalism (Harold Mah [2003], Enlightenment Phantasies. Cultural Identity in France and Germany, 1750–1914, Cornell University Press, Ithaca-London 2004, p. 157).

Dubuisson suggests that the Western categories shaping the academic science of history of religions should not be used outside the perimeter of the Western world, given the lack of proper historical and philosophical contextualization that would result from such an analysis. Once again, it is important to underline that the concept of “religion”, as created and debated in the Western discourse, is not to be considered as a void and neutral category with which to examine heterogeneous phenomena, which take roots in completely different contexts. Cf. Daniel Dubuisson [1998], The Western Construction of Religion. Myths, Knowledge, and Ideology, trans. William Sayers, The Johns Hopkins University Press, Baltimore-London 2003.

Bernard Lewis, Islam and the West, Oxford University Press, Oxford 1993, p. 3. For a comparative analysis, see Ammeke Kateman, Muḥammad ʿAbduh and His Interlocutors. Conceptualizing Religion in a Globalizing World, Koninklijke Brill, Leiden 2019, pp. 46–68. Once again, the philological reflection of Glei and Reichmuth, according to whom the two concepts are nevertheless comparable to a certain extent, is interesting (Reinhold Glei, Stefan Reichmuth, “Religion between Last Judgement, law and faith: Koranic dīn and its rendering in Latin translations of the Koran”, in Religion, vol. XLII, n. 2, April 2012, pp. 247–271).

According to Esposito, this “tendency to define religion as a system of belief restricted to personal or private life, rather than as a way of life, has seriously hampered our ability to understand the nature of Islam and many of the world’s religions. It has artificially compartmentalized religion, doing violence to its nature, and has reinforced a static, reified conception of religious traditions rather than revealed their inner dynamic nature” (John L. Esposito [1992], The Islamic Threat. Myth or Reality?, Oxford University Press, Oxford 1999, p. 260).

On this point, see William James [1902], The Varieties of Religious Experience. A Study in Human Nature, Routledge, London-New York 2002, p. 26; Ugo Bianchi [1970], The History of Religions, Brill, Leiden 1975, pp. 201–212.

In my introduction I recalled the concise but exhaustive definitions of sharīʿa given by Weiss and Khadduri, according to whom the concept should be defined exactly as a comprehensive way of life which gives shape and form to the existence of the believers. Katz correctly speaks about “comprehensiveness of the law” while referring to sharīʿa, in order to highlight this very point (Marion Holmes Katz, Body of Text. The Emergence of the Sunni Law of Ritual Purity, State University of New York Press, Albany 2002, p. 1). Roberts focuses on this topic stating that sharīʿa “is not a legal code in the Western sense and should not be confused with Western notions of limited government. Islam is intended to be comprehensive, and Sharia, in theory, regulates all aspects of a Muslim’s life, including both rights and duties, not only as regards Allah, and other Muslims, but also as regards non-Muslims” (Glenn L. Roberts, Islamic Human Rights and International Law, Dissertation.​com, Boca Raton 2007, p. 13). See also Diane Morgan, Essential Islam. A Comprehensive Guide to Belief and Practice, Praeger, Santa Barbara 2010, p. 165.

This is true in principle and regardless of the fields in which the sciences of fiqh do not provide answers, like public administration, to which historically supplied the use of qānūn.

Lewis, Islam and the West, cit., p. 4.

In the Islamic legal discourse, the part of sharīʿa dedicated to divine worship goes under the name of ibādah, while the term muʿāmalāt designates other legal matters such as commercial transactions and family law. It is not to be believed, however, that this distinction be between religious rules and non-religious rules, given that the category of what is “religious” clearly transcends worship and rituals. Moreover, as Hughes observes with reference to the Islamic classification of human actions, it is evident an “intersection of the legal, the ritualistic (i.e. the religious) and the moral” (Aaron W. Hughes, Muslim Identities. An Introduction to Islam, Columbia University Press, New York 2013, p. 137).

Peters and Bearman underline the far-reaching nature of the concept, whose eligibility to regulate and discipline both heavenly and earthly matters shows a fundamentally comprehensive nature, which falls beyond what can be properly termed as religious law (Rudolph Peters, Peri Bearman, “The Nature of the Sharia”, introduction to The Ashgate Research Companion to Islamic Law, eds. Rudolph Peters, Peri Bearman, Ashgate, Farnham-Burlington 2014, pp. 1–7). Noor Mohammed stresses the comprehensive dimension of sharīʿa, which constitutes “the main guidelines for spiritual as well as temporal Muslim conduct in this life as preparation for the hereafter […] The umbrella of Sharia in Islamic society covers the entire spectrum of Islamic life and ethical values in both temporal and spiritual activity” (Noor Mohammed, “Principles of Islamic Contract Law”, in Understanding Islamic Law. From Classical to Contemporary, eds. Hisham M. Ramadan, Altamira Press, Lanham-New York-Toronto-Oxford 2006, pp. 95–96).

In this sense, see Siraj Sait, Hilary Lim, Land, law and Islam. Property and human rights in the Muslim world, vol. I, Zed Books, London 2006, p. 47; Dina Rizk Khoury, “Administrative Practice Between Religious Law (Sharīʿa) and State Law (Kanun) on the Eastern Frontiers of the Ottoman Empire”, in Journal of Early Modern History, vol. V, n. 4, 2001, p. 305; Pier Francesco Zarcone, “Turchia, minoranze e laicità”, in Studi Interculturali, eds. Mario Faraone, Gianni Ferracuti, n. 3, Mediterrànea-Centro di Studi Interculturali, Trieste 2013, p. 10.

The most important author endorsing this theory is Weber in his interesting analysis of sharīʿa and the Islamic way of administering justice. See Max Weber [1921–1922], Economy and Society. An Outline of Interpretive Sociology, eds. Guenther Roth, Klaus Wittich, University of California Press, Berkeley-Los Angeles-London 1978, pp. 818–822.

“From my perspective, all law or legislation that is enforced through state institutions is secular, even when drawn from or based on Sharīʿa principles. Since it is not possible to enforce all the various interpretations of Sharīʿa by different scholars because of strong disagreements among and within the schools, enforcement through state institutions will necessarily have to be selective among competing views. Moreover, whatever principles of Sharīʿa are enforced, the actual enforcement happens through the political will of the state and not by virtue of their being Sharīʿa principles as such”. Abdullahi Ahmed An-Naʿim, Islam and the Secular State. Negotiating the Future of Sharīʿa, Harvard University Press, Cambridge 2008, p. 191.

A dedicated paragraph of Chap. 5 will deal with the concept of enforceability.

The issue of the bindingness of sharīʿa will be dealt with in Chap. 5.

In a broader reflection on the separation of politics and religion in an Islamic modern society, the point is well underlined by Anwar M. Barkat, “Church-State relationships in an ideological Islamic State”, in The Ecumenical Review, vol. XXIX, n. 1, January 1977, pp. 39–40.

Cf. Matthew Bunson [1994], “Pontifex Maximus” (voice), in Encyclopedia of the Roman Empire, ed. Matthew Bunson, Facts on File, New York 2002, p. 443. In the framework of Roman religiosity, it is possible to agree with Gradel, according to whom we “instinctively see Jupiter as a religious figure, a Roman emperor as a political one. This distinction between religion and politics is christianizing, as is basically the very concept of ‘religion’ itself” (Ittai Gradel, Emperor Worship and Roman Religion, Clarendon Press, Oxford 2002, pp. 27–28).

With regard to Augustus as a new Numa, as for the religious devotion in his political narrative, see Trevor S. Luke [2014], Ushering in a New Republic. Theologies of Arrival at Rome in the First Century BCE, University of Michigan Press, Ann Arbor 2017, pp. 242–260; Angeline Chiu, Ovid’s Women of the Year. Narratives of Roman Identity in the Fasti, University of Michigan Press, Ann Arbor 2016, p. 102.

Gospel according to St. Matthew, 22, 21. Cf. Mark, 12, 13–17; Luke, 20, 20–26 (trans. New American Bible).

Dijkstra and Van Espelo analyzed the usage of the title and its passage from the emperors to the popes, not without ambiguities and contradictions. The official acquisition of the title of pontifex maximus to the pontifical titulature, as well as its abandonment by the Caesars, could be posterior to what had been priory theorized in literature. However, the symbolic character of this fundamental passage remains as a sign of the inheritance by the pope of Rome of imperial garments. Cf. Roald Dijkstra, Dorine Van Espelo, “Anchoring Pontifical Authority: A Reconsideration of the Papal Employment of the Title Pontifex Maximus”, in Journal of Religious History, vol. XLI, n. 3, September 2017, pp. 312–325.

Gelasius spoke about two powers governing the world, respectively the auctoritas sacrata pontificum and the regalis potestas. Denzinger defines the letter as “the most known document of the ancient Church regarding the two powers on earth” (Heinrich Denzinger [1854], Enchiridion symbolorum, definitionum et declarationum de rebus fidei et morum, ed. Peter Hünermann, Edizioni Dehoniane, Bologna 1996, p. 191). For an explanation of the Gelasian doctrine as for the duality of powers, see Walter Ullmann [1955], The Growth of Papal Government in the Middle Ages. A Study in the Ideological Relation of Clerical to Lay Power, Routledge, London-New York 2010, pp. 24–26. For an in-depth analysis of the letter, with a proper historical contextualization, see Rocco Ronzani, o.s.a., “La lettera “Famuli uestrae pietatis” di Gelasio di Roma all’Imperatore Anastasio I”, in Augustinianum, vol. LI, n. 2, Istituto Patristico Augustinianum, 2011, pp. 501–549.

The reference is to Corpus juris civilis, Novellae, VI, Praefatio, where it is stated “Maxima quidem in hominibus sunt dona dei a superna collata clementia sacerdotium et imperium, illud quidem divinis ministrans, hoc autem humanis praesidens ac diligentiam exhibens; ex uno eodemque principio utraque procedentia humanam exornant vitam. Ideoque nihil sic erit studiosum imperatoribus, sicut sacerdotum honestas, cum utique et pro illis ipsis semper deo supplicent. Nam si hoc quidem inculpabile sit undique et apud deum fiducia plenum, imperium autem recte et competenter exornet traditam sibi rempublicam, erit consonantia quaedam bona, omne quicquid utile est humano conferens generi”. (Corpus Juris Civilis, vol. III, eds. Rudolf Schöll, Wilhelm Kroll, Weidmannsche Buchhandlung, Berlin 1895, pp. 35–36). For an analysis, see Michael Azkoul, “Sacerdotium et Imperium: the Constantinian Renovatio According to the Greek Fathers”, in Theological Studies, vol. XXXII, n. 3, September 1971, pp. 431 ff.

Regarding the relationship between spiritual and temporal powers in the Middle Ages, see J. A. Watt [1988], “Spiritual and Temporal Powers”, in The Cambridge History of Medieval Political Thought, c. 350-c. 1450, ed. J. H. Burns, Cambridge University Press, Cambridge 2007, pp. 367–423. For an in-depth analysis of the relationship between pope and emperor in the Middle Ages, with interesting considerations about the separation of competences in the ideal framework of the monarchia mundi, see Othmar Hageneder [1985], “Il dominio del mondo nel medioevo”, in Il Sole e la Luna. Papato, Impero e regni nella teoria e nella prassi dei secoli XII e XIII, trans. Gabriele Ingegneri, ed. Maria Pia Alberzoni, Vita e Pensiero, Milan 2000, pp. 11–31.

With regard to this, it is interesting to notice that even in the bull Unam Sanctam issued in 1302 by pope Boniface VIII, who dogmatically affirmed the subordination of the temporal power to the guidance of the spiritual one, the necessity of both authorities is never put in question. On the contrary, the pontiff stressed the necessity of the known “two swords” in the Catholic church, stating that “[i]n hac eiusque duos esse gladios, spiritualem videlicet et temporalem, evangelicis dictis instruimur. Nam dicentibus Apostolis, ecce gladii duo hic, in ecclesia scilicet cum Apostoli loquerentur, non respondit [D]ominus nimis esse, sed satis”. (Text from Revue des Questions Historiques, year XXIV, n. 46, Bureaux de la Revue, Paris July 1889, p. 255.)

It is not possible to agree with Shireen Hunter, who argues that during the Holy Roman Empire the two authorities were actually fused into one. In my opinion, Hunter incurs in two kinds of errors. First, she mistakes the theoretical bipartition of powers with the actual extent of the competences of each one of them, which could of course be questioned and challenged. Second, she argues that the emperor in the Middle Ages could be considered as a religious leader, mistaking once again the dimension of his religious and heavenly derived legitimacy with its role and attribution as a political figure. Cf. Shireen T. Hunter, The Future of Islam and the West. Clash of Civilizations or Peaceful Coexistence?, Praeger, Westport-London 1998, p. 34.

Ibid., pp. 45 ff. Among classic Islamic scholars, Ibn Khaldūn recognizes the uniqueness of Islam in its all-encompassing nature, being at the same time “a message, a system of legislation and the implementation of this legislation. Amongst all the religions, Islam is unique in encompassing both spiritual and temporal power” (Ali Abdel Razek [1925], Islam and the Foundations of Political Power, trans. Maryam Loutfi, ed. Abdou Filali-Ansary, Edinburgh University Press, Edinburgh 2012, p. 74). It is to be noted, however, that Razek does not share the opinion of Ibn Khaldūn with regard to this point. In my opinion, Ibn Khaldūn’s position simply mirrors the comprehensiveness of sharīʿa as guidance for the believer in every matter of life, and it is therefore worth consideration. Lambton remarkably observes that in Islam “there is no doctrine of the temporal end which alone belongs to the state and the eternal end which belongs to, and in the prerogatives of, the church; no balance between the two; each equal to the other when acting in its own sphere; each equally dependent on the other when acting in the sphere of the other and no tension between the historic community and the church as custodian of the universal common elements in human existence” (Lambton, State and Government in Medieval Islam, cit., p. xv). Crone shares this position as well, observing that due to the environment “in which it originated, Islam was thus embodied in a political organization almost from the start: the umma was a congregation and a state rolled together. Christians originated with dual membership. As believers they belonged to the church and were administered by the clergy; as citizens they belonged to the Roman empire and were ruled by Caesar. Islam originated without this bifurcation. As believers and as citizens they were members of the umma and ruled by the Prophet, thereafter by his successors” (Patricia Crone, God’s Rule. Government and Islam, Columbia University Press, New York 2004, p. 13).

In my opinion, with regard to the power of the early caliphs in both secular and spiritual matters, the definitory study of Crone and Hinds overcomes every possible objection from other scholars. See C Patricia Crone, Martin Hinds [1986], God’s Caliph. Religious Authority in the First Centuries of Islam, Cambridge University Press, Cambridge 2003, especially pp. 1–23. As Swenson suggests, at least until the fall of the Abbasids the title of caliph “was applied to the head of Islam as well as to the head of the Muslim Empire”, in order to “celebrate the main rituals of Islam, to defend it, and to administer the religion” (Donald S. Swenson [2005], Society, Spirituality, and the Sacred. A Social Scientific Introduction, University of Toronto Press, Toronto 2009, p. 110). Consider also Nurullah Ardıç, Islam and the Politics of Secularism. The Caliphate and Middle Eastern modernization in the early 20th century, Routledge, London-New York 2012, p. 176.

Cf. the already mentioned works by Azmi Özcan, Pan-Islamism. Indian Muslims, the Ottomans and Britain, 1877-1924, Brill, Leiden 1997, pp. 48–54, and Caroline Finkel, Osman’s Dream. The Story of the Ottoman Empire, 1300-1923, John Murray Publishers, London 2005, ch. 15.

See the relative voices in Ludwig W. Adamec, Historical Dictionary of Islam, Scarecrow Press, Lanham-Toronto-Plymouth 2009, p. 35; John L. Esposito (ed.), The Oxford Dictionary of Islam, Oxford University Press, Oxford 2003, p. 19.

The term is used in a non-univocal way, and it is commonly used to refer to religious functionaries and clerics. See “Mullah” (voice) in Esposito, The Oxford Dictionary of Islam, cit., p. 214.

From this point of view, the case of Shīʿa Islam appears to be different, with an established and institutionalized clerical order, whose hierarchy is still not comparable with, for instance, the one of Catholicism. On this, see Mohammed Ayoob, Danielle Nicole Lussier, The Many Faces of Political Islam. Religion and Politics in Muslim Societies, University of Michigan Press, Ann Arbor 2020, pp. 27–29.

“Political authority and religious morality are blended into a single prism in al-Ghazali’s thought, with the monotheistic Prophet-Kings David and Solomon cited. A methodology based on the juristic account of the Shari’ah dominates al-Ghazali’s renewal in the recovery and continuation of the past of the monotheistic prophets. The Qur’an is the foremost authority and source in the interpretation of a state based on Islamic precepts. As a universal principle, ethical conduct is the only worthy means to acquire political authority for al-Ghazali in his citation of the Qur’anic verses about the Prophet David who was also the King of the Israelites. The monotheistic past supplies many appropriate examples about the purposes of politics – protection of religion and freedom” (Mohammed Moussa, Politics of the Islamic Tradition. The Thought of Muhammad al-Ghazali, Routledge, London-New York 2016, p. 102).

Regarding this, see Hamilton Alexander Rosskeen Gibb [1954 –], The Encyclopaedia of Islam, SAN-SZE, Brill, Leiden 1997, pp. 693 ff. Briefly, it can be argued that “siyāsa is, on the one hand, the formulation of an active behaviour in a way that considers appropriately its consequences. On the other hand, it implies a certain pragmatic rationalism in overseeing affairs that is, above all, present in siyāsa as political management. In regard to this latter meaning, siyāsa was used interchangeably in early Islam to denote statecraft, government, the manner of governing or the ability to govern” (Abdessamad Belhaj, “Law and order according to Ibn Taymiyya and Ibn Qayyim al-Jawziyya: a re-examination of siyāsa sharʿiyya”, in Islamic Theology, Philosophy and Law. Debating Ibn Taymiyya and Ibn Qayyim al-Jawziyya, eds. Birgit Krawietz, Georges Tamer, De Gruyter, Berlin-Boston 2013, p. 402.

With regard to this, Lewis observes that siyāsa denotes “a skill or a craft rather than a doctrine or a philosophy” (Bernard Lewis, Political Words and Ideas in Islam, Markus Wiener Publishers, Princeton 2008, pp. 32–33). As I argue in my work, the Western world would on the contrary conceive politics mainly as a doctrine or philosophy, in abstract separated by other fields of human action and comprehension. Lewis, in this passage, emphasizes the concreteness of the Islamic perspective in approaching politics, conceived above all as the pragmatic human activity of governing.

According to the doctrine of siyāsa sharʿiyya, the political authority was enabled to enact regulations and administrative orders (qānūn), insofar as this activity was compliant with sharīʿa. Cf. Leonard Wood, “Legislation as an instrument of Islamic law”, in The Oxford Handbook of Islamic Law, eds. Anver M. Emon, Rumee Ahmed, Oxford University Press, Oxford 2018, pp. 556–557. The term siyāsa sharʿiyya was firstly used by Ibn ʿArabī (1165–1240), although “later sources on siyāsa sharʿiyya relies heavily on Ibn Taymiyya” (Belhaj, Law and order according to Ibn Taymiyya, cit., p. 402).

Regarding the rituality of punishment, it is worth remembering what Foucault stated with regard to the so-called liturgy of supplice, in which framework the spectacularism of torture represents a constitutive element. According to Foucault, “torture forms part of a ritual. It is an element in the liturgy of punishment and meets two demands. It must mark the victim. It is intended, either by the scar it leaves on the body, or by the spectacle that accompanies it, to brand the victim with infamy; even if its function is to ‘purge’ the crime, torture does not reconcile; it traces around or, rather, on the very body of the condemned man signs that must not be effaced; in any case, men will remember public exhibition, the pillory, torture and pain duly observed. And, from the point of view of the law that imposes it, public torture and execution must be spectacular, it must be seen by all almost as its triumph” (Michel Foucault [1975], Discipline & Punish. The Birth of the Prison, trans. Alan Sheridan, Vintage Books, New York 1995, p. 34).

I briefly deal with this fundamental issue in my article “La funzione della pena tra Occidente e mondo islamico: una prospettiva teleologica”, in Dignitas. Percorsi di carcere e giustizia, May 2016, www.​rivistadignitas.​it.

Thomas suggests that “we find that the natural inclination of man is to repress those who rise up against him. Now it is evident that all things contained in an order, are, in a manner, one, in relation to the principle of that order. Consequently, whatever rises up against an order, is put down by that order or by the principle thereof”. Summa Theologiae, I-II, q. 87, art. 1, translation by the Fathers of the English Dominican Province [1912], Summa Theologica, Volume II - Part II, First Section, Cosimo Classics, New York 2007, p. 973.

According to the Aquinas, “the sinner acts against his reason, and against human and Divine law. Wherefore he incurs a threefold punishment; one, inflicted by himself, viz. remorse of conscience; another, inflicted by man; and a third, inflicted by God”. Summa Theologiae, I-II, q. 87, art. 1 (ibid., p. 973).

As Biondi observes, even “the preaching of Jesus admits a separation between the divine and human order, and therefore the possibility that, in the non-essential points, the two orders may not coincide. The divine law ranges in the field of the spirit and the supernatural, and therefore proclaims certain truths that would be inconceivable to translate into juridical norms, aimed at regulating human relationships and rendering externally coercible the claims deriving from it” (Biondo Biondi, Il diritto romano cristiano, vol. I, Giuffré, Milan 1952, p. 66). Regarding the same point, and about the separation between sin and crime due to the progressive elaboration of the distinction between spiritual and temporal powers in Catholic canon law, see Andrew Skotnicki, “History of Religion and Crime”, in The Social History of Crime and Punishment in America. An Encyclopedia, ed. Wilbur R. Miller, SAGE Publications, Thousand Oaks 2012, p. 1530.

“Even the punishment that is inflicted according to human laws, is not always intended as a medicine for the one who is punished, but sometimes only for others: thus when a thief is hanged, this is not for his own amendment, but for the sake of others, that at least they may be deterred from crime through fear of the punishment”. Thomas Aquinas, Summa Theologiae, I-II, q. 87, art. 3 (trans. by the Fathers of the English Dominican Province [1912], Summa Theologica, Volume II - Part II, First Section, Cosimo Classics, New York 2007, p. 975).

This teleological perspective on crime and punishment is valid even in the case of a Hegelian society based on the idea on an ethical State. Regarding punishment, Hegel shows a basically retributivist position, according to which punishment is to be considered as the nullification of an evil and as the restoration of a right, marking the transition from Unrecht to Recht (see Allen W. Wood [1990], Hegel’s Ethical Thought, Cambridge University Press, Cambridge 1995, pp. 108 ff.). In this context, the individual lives in function of the State, and therefore the idea of punishment cannot be seen but as a mean to safeguard the State, and not necessarily the morality of the individual. This is particularly evident regarding Hegel’s consideration of punishment as the denial of the crime as a universal law (cf., for a critical position, Philip J. Kain, Hegel and Right. A Study of the Philosophy of Right, State University of New York Press, Albany 2018, p. 44).

Once again, the “earthly” nature of the criminal sanction in this context is clearly underlined by Hobbes’ distinction between sin and crime, with all the aforementioned implications. See Laurie M. Johnson Bagby, Hobbes’s Leviathan. A Reader’s Guide, Continuum, London 2007, p. 56.

“Every greatness, every power, every subjection is based on the executioner: he constitutes the horror and the bond of the human association. Take this incomprehensible agent out of the world, and at the same time order gives way to chaos, thrones sink and society disappears”. Joseph De Maistre [1821], “Les Soirées de Saint-Pétersbourg”, in Oeuvres complètes, Slatkine, Geneva 1979, pp. 32–33.

In the words of Beccaria: “Is death a really useful and necessary punishment for the security and the good order of society? Are tortures and penances just, and do they achieve the end laws pursue? What is the best manner in preventing crimes?” (Cesare Beccaria [1764], Dei delitti e delle pene, Lackington, Allen, and co., London 1801, p. 4).

Ibid., p. 45.

Rehabilitation can be defined as “modification of an offender’s criminal behavior”, which seeks to “terminate or reduce criminal activity through counseling, group therapy, job training, or similar programs” (Alfred Blumstein, Jaqueline Cohen, Jeffrey A. Roth, Christy A. Visher (eds.), Criminal Careers and “Career Criminals”, vol. I, National Academy Press, Washington 1986, pp. 15–16). For an overview on rehabilitation and crime prevention, see David Weisburd, David P. Farrington, Charlotte Gill, “What Works in Crime Prevention?”, introduction to What Works in Crime Prevention and Rehabilitation. Lessons from Systematic Reviews, eds. David Weisburd, David P. Farrington, Charlotte Gill, Springer, New York 2016, pp. 1–15.

For a historical perspective of treatment and rehabilitation, see Iain Crow, The Treatment and Rehabilitation of Offenders, SAGE, London-Thousand Oaks-New Delhi 2001, pp. 3–20. For a comprehensive history of the principle of rehabilitation in the English system, see Anthony H. Goodman, Rehabilitating and Resettling Offenders in the Community, Wiley-Blackwell, Chichester 2012, especially pp. 33 ff.

For instance, Carrara argued that society “has the duty of trying to achieve in every way the emendation of the offender” and that “as an instrument to such effect, it must take advantage of the time of the atonement of the punishment in order to act effectively on the soul of the condemned” (Francesco Carrara, “Emenda del reo assunta come unico fondamento e fine della pena”, in Opuscoli di diritto criminale, ed. Francesco Carrara, vol. I, Giachetti, Prato 1878, p. 189). More recently, Francesco Palazzo [2003], Corso di diritto penale. Parte generale, Giappichelli, Turin 2013, p. 36. This view is to be rejected because of the various philosophical problematics it poses, among which the most important is, in my opinion, the non-univocal legitimacy of the moral imposition actuated by the State on the offender’s morality, especially in secular and pluralist contexts.

Traditionally, the majority of authors agree in recognizing the aforementioned five goals of sharīʿa, that is to say, the protection of religion, life, intellect, procreation, and property. Other authors recognized as sharīʿa’s purposes justice and happiness as well, while in modern times the doctrine of maqāṣid is sometimes used for fostering innovative interpretations of sharīʿa-derived provisions. About the maqāṣid, regarding which authors are not always concord and whose theorization is debated, see briefly Jasser Auda, Maqāṣid Al-Sharīʿa. A Beginner’s Guide, The International Institute of Islamic Thought, London-Washington 2008, especially pp. 1–16.

Just to cite a few monographs in which the term recurs from the titles: Tahir Wasti, The Application of Islamic Criminal Law in Pakistan. Sharia in Practice, Brill, Leiden-Boston 2009; Luqman Zakariyah, Legal Maxims in Islamic Criminal Law. Theory and Applications, Brill, Leiden-Boston 2015; Olaf Köndgen, The Codification of Islamic Criminal Law in the Sudan. Penal Codes and Supreme Court Case Law under Numayrī and al-Bashīr, Brill, Leiden-Boston 2018.

It is worth considering that a “distinguishing feature of Islamic ideology concerning crime is its view that crime is a violation of God’s law and thus is directed against God before the immediate victim” (Abdullah H. M. Al-Khalifah, “Religiosity in Islam as a Protective Mechanism against Criminal Temptation”, in American Journal of Islamic Social Sciences, vol. XI, n. 1, Spring 1994, p. 6).

For a comprehensive and detailed analysis, see Mohammad Hashim Kamali, Crime and Punishment in Islamic Law. A Fresh Interpretation, Oxford University Press, New York 2019, pp. 21–185. See also Gamil Muhammed Hussein, “Basic Guarantees in the Islamic Criminal Justice System”, in Criminal Justice in Islam. Judicial Procedure in the Sharīʿa, eds. Muhammad Abdel Haleem, Omar Sherif, Kate Daniels, I.B. Tauris, London-New York 2003, pp. 37–43; Rudolph Peters, Crime and Punishment in Islamic Law. Theory and Practice from the Sixteenth to the Twenty-First Century, Cambridge University Press, Cambridge 2005, pp. 53–65; Ali Akram Khan Sherwani, Impact of Islamic Penal Laws on the Traditional Arab Society, M.D. Publications, New Delhi 1993, pp. 54–57.

See Hussein, Basic Guarantees in the Islamic Criminal Justice System, cit., pp. 43–44; Peters, Crime and Punishment, cit., pp. 38–53; Sherwani, Impact of Islamic Penal Laws, cit., pp. 48–54.

See Hussein, Basic Guarantees in the Islamic Criminal Justice System, cit., pp. 44–45; Peters, Crime and Punishment, cit., pp. 65–68; Sherwani, Impact of Islamic Penal Laws, cit., pp. 57–60. It is relevant to notice that a ta’zīr penalty may be applied even for ḥadd or qiṣāṣ conducts, for instance, in cases when the legal requirements for other kinds of punishments are not met. Therefore, ta’zīr has not just a residual and subsidiary nature as for the prosecuted action, but for the punishment as well. In light of this, it is correct to say that ta’zīr mainly reflects the perspective of retribution and deterrence, wherever it is not possible to adopt different instruments of compensation. Regarding this latter point, see M. H. Kamali, Crime and Punishment in Islamic Law, cit., pp. 188–189.

See Adel Omar Sherif, “Generalities on Criminal Procedure under Islamic Sharīʿa”, in Criminal Justice in Islam, cit., p. 5.

I speak here of Western modernity because before the modern period there were indeed cases in which, with regard to homicide and criminal prevention, the public and private elements were inextricably confused in one, as in the case of the early Medieval barbarian law of Europe. In these cases, for instance, we can draw some parallelisms with the Islamic system of qiṣāṣ, with specific regard to the monetary compensations of violent crimes like homicides and to the consideration of homicide as an offense prevalently conceived against individuals. On these last points, see Michel Rouche [1982], “Break-up and metamorphosis of the West: fifth to seventh centuries”, in The Cambridge Illustrated History of the Middle Ages, 350-950, vol. I, ed. Robert Fossier, trans. Janet Sondheimer, Cambridge University Press, Cambridge 2003, pp. 80–81.

Peters highlights the private dimension of retaliation, stating that it belongs to “the domain of private prosecutions, in the sense that the culprit can only be sentenced and punished if the victim or his heirs demand punishment” (Peters, The Islamization of Criminal Law, cit., p. 247). Crone puts in light the private dimension of this kind of criminal offenses as well (Crone, God’s rule, cit., p. 281).

Kamali suggests that the case of qiṣāṣ cannot be simply defined as a “private” offense because of the religious and moral disvalue of the conduct of homicide, which calls in cause the divinity as well. Nevertheless, it is possible to argue that the criminal methodology of qiṣāṣ is based on a privatistic approach, in the sense that the crime is to be prosecuted mainly by the victim or the heirs. Cf. Kamali, Crime and Punishment in Islamic Law, cit., p. 209.

Lambton, State and Government in Medieval Islam, cit., pp. xv-xvi. Niazi similarly argues that one “of the distinguishing features of Islamic law is that there is no divergence between the law and morality. Every crime is a sin as well” (Liaquat Ali Khan Niazi, Islamic Law of Tort, Research Cell, Cayal Singh Trust Library, Lahore 1988, p. 13).

See Deborah Scolart, L’Islam, il reato, la pena. Dal fiqh alla codificazione del diritto penale, Istituto per l’Oriente C.A. Nallino, Rome 2013, p. 16. According to the author “every crime is indeed a sin as well, because the offender violates with his conduct an explicit command of God”, but not necessarily vice versa (ibid., pp. 21–22).

For an analysis of pardon in the Islamic legal view, see Hanifah Haydar Ali Tajuddin, Nasimah Hussin, Majdah Zawawi, “Restorative justice in Islamic law: application in Malaysian legal history and the criminal justice system”, in Research Handbook on Islamic Law and Society, ed. Nadirsyah Hosen, Edward Elgar Publishing, Cheltenham-Northampton 2018, pp. 256–257. Cf. Scolart, L’Islam, il reato, la pena, cit., p. 26.

See Tajuddin, Hussin, Zawawi, Restorative justice in Islamic law, cit., p. 259.

In this section I refer mainly to qiṣāṣ for its being conceived as a private offense, but it is to be noted that the institute of pardon could be granted even in the case of ḥudūd actions and taz’ir penalties, but only in case of conducts involving offenses to individuals, and not to Allāh. Given the complexity of the matter and the divergences of opinions, I refer to retaliation cases in order to better explain my point of view on this subject.

Cf. Scolart, L’Islam, il reato, la pena, cit., p. 29. In the context of a broader reflection that involves not just Islam but even the Jewish tradition, Jany notes the correlation between the participation of the community in execution by stoning and the lack of a central authority in charge of enforcing law and inflicting sanctions. Cf. Janos Jany [2012], Judging in the Islamic, Jewish and Zoroastrian Legal Traditions. A Comparison of Theory and Practice, Routledge, London-New York 2016, p. 85.

Hisham M. Ramadan, “On Islamic Punishment”, in Understanding Islamic Law. From Classical to Contemporary, ed. Hisham M. Ramadan, AltaMira Press, Lanham-New York-Toronto-Oxford 2006, p. 43. Cf. Scolart, L’Islam, il reato, la pena, cit., 31–32.

Peters suggests that some penalties in sharīʿa have a “vertical dimension”, “in that they relate to reward and punishment in the Hereafter” (Peters, Crime and Punishment, cit., p. 30).